M/S. NATIONAL INSURANCE COMPANY LTD. Vs. ASIA

JUDGEMENT

(1.) THE M.V.O.P Nos.787, 789, 793, 788, 786, 794 of 2007 respectively which are impugned in these appeals are filed against the owner and insurer of van bearing No.AP 9 X 6283 as respondents 1 and 2 besides the owner and insurer of the auto bearing No.AP 23 W 0879 as respondents 3 and 4. They were allowed by separate orders respectively by the learned II Additional District & Sessions Judge (Fast Track Court), Sangareddy awarding respective compensation finding that though the auto was against the capacity of 3 + 1 carrying 9 persons besides the driver, there is no other proof to say there is negligence on the part of the driver of the auto from the F.I.R. and charge sheet filed against the driver of the van and thereby the respondents 1 and 2 i.e. owner and insurer of the van are jointly and severally liable to pay the compensation claimed respectively. Having been aggrieved by the said awards impugning the same, the insurer of the van, National Insurance Company, who was the 2nd respondent to the respective claim petitions preferred the appeal by showing the injured claimant as the 1st respondent, but for MACMA No.615 of 2011 against O.P.No.793 of 2007, the claimants are parents of the deceased girl, as respondents 1 and 2, owner and insurer of the auto bearing No. AP 23 W 0879 as respondents 3 and 4. Since the common question of law and fact involved in all these cases arising out of the same accident and the claimants are almost the injured persons traveling in the auto, these are taken up together.

(2.) THE contentions in the grounds of appeal filed by the insurer of the van, which are common in all cases, are that the Judgment and decree of the Tribunal is contrary to law, weight of evidence and probabilities of the case and ought to have dismissed the claim petitions contending that the Tribunal failed to note despite the fact that the auto rickshaw driven by owner cum driver, 3rd respondent to the respective claim petitions against the capacity of 3 + 1 carried 9 persons besides the driver, by putting extra wooden plank on the back side of the auto to accommodate four extra passengers to sit and also two more on either side of driver with seating capacity of one man for driver alone. It is also contended that when these facts are crystal clear, the insurer and owner cum driver of the auto also are responsible as there is contributory negligence per se and that the Tribunal went wrong in saying that Van driver alone at fault merely because charge sheet and FIR are against the driver of the van instead to fix contributory negligence on the auto driver cum owner and insurer hence to set aside the award fastening liability on the owner and insurer of the van alone and apportion the liability of 50% each on the driver cum owner and insurer of the auto and van respectively by relying upon two decisions of this Court in the course of hearing of arguments that are of Shamshuddin and another v. Atta Anaruddin and another where for involvement of van and lorry respectively apportioned each 50% contributory negligence from proceeding in opposite direction and in other case Md.Rasheed v. Susheela Agarwal and another for involvement of the lorry and auto with overloading apportioned liability of contributory negligence each 50%. It is also the contention in the grounds of appeal as well as oral submissions that no driving licence of the driver of the vehicle produced for competence to drive, and no permit of the vehicles even filed. The other contentions are quantum of compensation arrived respectively by the Tribunal is exorbitant and excessive to reduce. Hence sought for to allow the appeals by fixing contributory negligence of both vehicles and to apportion the liability and also to reduce the quantum in arriving just compensation.

(3.) IT is also the contention of the learned counsel for the owner of the auto that if at all to be made liable with any contributory negligence, it all depends on the size of the vehicle, condition of the road and manner of occurrence and the material on record is bereft of the particulars, that the auto is smaller in size when compared to the van and further contended that there is no evidence to say that the auto driver is unskilled person without knowing the driving of the auto as a result of which accident was occurred and in the absence of which mere overloading is not per se suffice to presume any contributory negligence and further contended that if at all to make liable the owner cum driver of the auto from the date of their impleadment orders for interest liability on just proportionate contributory negligence to arrive if any.